(Bloomberg View) -- President Donald Trump has threatened to punish any “sanctuary city” that resists turning over undocumented immigrants to federal agents -- although he almost certainly lacks the authority to do so. So it’s noteworthy this week that a federal district court in Texas has held that even the state legislature can’t entirely force sanctuary cities to work alongside the federal government on immigration matters.
The Texas law overreached substantially, punishing cities for barring their officials from “enforcement assistance” to federal authorities and prohibiting city officials from endorsing the very idea of sanctuary cities. Parts of the law survived, and can still be used to limit what sanctuary cities may do.
But the court’s holding -- which was framed as an injunction based on likelihood of success, not as a final judgment -- is part of a more general resistance to Trump-style policies. Had Trump not tried to drum up backlash against sanctuary cities, this legal backlash to the backlash might not have been as powerful.
The lengthy opinion by Chief Judge Orlando Garcia, a Bill Clinton appointee and former member of the Texas Legislature, broke down the Texas law, Senate Bill 4, into several parts. The first section of his analysis had to do with the provisions of S.B. 4 relating to the communication of immigration status by local officials to federal officials.
There’s no official definition of what a sanctuary city is, but this gets at the most basic element: Many sanctuary cities have adopted policies that say their police and other city officials won’t ask people they encounter about their immigration status and won’t tell the federal immigration authorities if they happen to find out or suspect that someone is undocumented.
The Texas law says that Texas cities can’t adopt policies against maintaining immigration status information or exchanging it with the federal government. That’s a direct challenge to the idea of a sanctuary city.
Garcia did not strike down this part of the Texas law. He explained that the Texas law does not require arresting officers to convey immigration information to the federal government; it just says the cities can’t have a policy that would prohibit officers from doing so.
This part of Garcia’s holding is a win for those who don’t like sanctuary cities. Indeed, if the Texas law had been restricted to barring cities from banning information exchange, the headline from Garcia’s opinion would be that Texas is allowed to block its cities from becoming sanctuaries.
Legally, Garcia is almost certainly right about this. As a matter of local government law, cities are largely the creatures of the states that incorporate them. It makes sense that states would have it within their power to order their cities not to adopt otherwise lawful policies that the states don’t like. That may be unfortunate from the standpoint of local autonomy, but it’s a familiar feature of existing law.
But because the Texas law went further, Garcia’s opinion didn’t stop there.
S.B. 4 also barred cities from telling their officers not to cooperate with federal immigration officers, “including providing enforcement assistance.” At a minimum, this means a local official could not be barred from helping catch or detain undocumented people. Garcia held that this provision probably contradicted federal law, which sets very particular limitations and conditions for state-federal cooperation in immigration.
Under federal law, state officials can work with and for the federal government in enforcement when there are written agreements between the two and the local officers get special training. Garcia reasoned that S.B. 4 required cooperation in enforcement under circumstances where the agreements and the training weren’t in place. And when a state law contradicts a federal law, the federal law wins.
This part of the decision was also probably correct, but it depends on how you interpret S.B. 4. It seems at least possible that the law meant only that a city couldn’t adopt a policy that prohibited its officers from ever cooperating with federal agents -- in which case it wouldn’t necessarily contradict the federal law. This section of Garcia’s opinion is vulnerable on appeal, which Texas initiated Thursday.
Garcia also froze a fairly absurd section of S.B. 4 that says local officials may not “endorse” sanctuary city policies. This pretty clearly violates those officials’ free-speech rights. Texas can tell the cities what policies they may or may not adopt; it can’t tell independently elected public officials what they may say about a matter of great public concern.
Finally, Garcia also said that it was probably unlawful for the Texas law to require local officials to enforce federal detention orders. In essence, he held, state officials can’t detain anyone without probable cause under the Fourth Amendment, and a federal detention order might not qualify for a local official who isn’t charged with enforcing federal law.
This argument is creative and for that reason appealing, but I’m not sure it’s completely convincing, and it will no doubt be challenged on appeal. It’s true that federal officials have statutory authority to detain undocumented people before deporting them, which local officials may not have. But it seems odd to think that a local official would lack the probable cause to detain someone when a federal official directs the local official to do so on the ground that the federal government has reason to believe the person is undocumented.
It’s true that, under Supreme Court precedent, the states alone can’t make warrantless arrests of people on suspicion that they are undocumented -- that’s one of the illegal things Sheriff Joe Arpaio did in Arizona. Yet it seems like a different matter for a state official to be permitted to detain when federal authorities say they have good reason.
The upshot is that Garcia’s complicated judgment will be seen and claimed as a victory for the sanctuary cities movement. That’s not altogether accurate, because the ruling did uphold some key pieces of the Texas law. Nevertheless it reflects a more general feeling in the federal courts that any policy, even indirectly associated with Trump, should now be treated with considerable constitutional skepticism. If Texas had held back from the more outlandish aspects of its law -- or if Trump had not threatened sanctuary cities so bluntly -- the political landscape might look very different.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.
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